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WHY ON EARTH SHOULD AIR TRAFFIC CONTROLLERS BE PRO-TRUMP?  
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Erwin Chemerinsky and Catherine Fisk
June 6, 2025
The New York Times

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_ The White House took a step last week that significantly undercuts
the idea that federal employment should be nonpartisan. No modern
presidential administration has undertaken such an effort to staff the
entire government with political loyalists. _

Photo-illustration by Sam Whitney/The New York Times (Source
photographs by Brendan Smialowski, Tetra Images and PapaBear),

 

A May 29 memo
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the Office of Personnel Management may seem technical, but the policy
that it outlines has grave implications for how the government
functions and creates an unconstitutional political test for federal
hiring.

At heart, the new policy is about viewpoint discrimination: People
applying for federal jobs whose views the Trump administration does
not like will not be hired. This is the most recent of the
administration’s actions to undermine the nonpartisan Civil Service
and consolidate control over almost all federal employees in the White
House.

In a densely worded, 12-page memo, Vince Haley, an assistant to the
president for domestic policy, and Charles Ezell, the acting O.P.M.
director, make fealty to the president’s agenda a criterion for
hiring for most federal positions. Imposing such a litmus test for
nonpolitical positions runs afoul of the nearly 150-year-old federal
Civil Service law, the 1939 Hatch Act and the First Amendment.

Under federal law, about 4,000 federal jobs are filled by political
appointees. These positions allow the president to appoint those who
share his views and to remove those who do not support his policy
priorities. Most remaining federal jobs are hired based on nonpartisan
and objective assessments of merit, and the hiring criteria are tied
to the job duties.

The recent memo would, in effect, dramatically expand that exception
for political appointees to include everyone at what’s known as
level GS-5 or above — a group that includes clerical positions,
technicians for soil conservation and firefighters. The ideologies and
views of these individuals should play no role in their potential
hiring.

The policy announced in the memo requires every person applying for a
position level GS-5 or above to submit four essays. One requires that
the applicant address: “How would you help advance the president’s
executive orders and policy priorities in this role? Identify one or
two relevant executive orders or policy initiatives that are
significant to you, and explain how you would help implement them if
hired.” Another prompt: “How has your commitment to the
Constitution and the founding principles of the United States inspired
you to pursue this role within the federal government? Provide a
concrete example from professional, academic or personal
experience.”

Imagine that someone applying to be a secretary or a soil technician
or a firefighter were to answer with: I believe the founding
principles of this country were racist and I do not adhere to them.
Or: I will perform my job to the best of my abilities and will follow
federal law, but I do not see my position as political in any way.

It’s hard to imagine that those people would be hired. And yet, the
Civil Service was created in the 19th century precisely to avoid such
politically based hiring. The prohibition on political considerations
in hiring was strengthened by the Hatch Act, which was enacted at the
behest of conservatives who worried that too many Democrats had been
hired to staff New Deal agencies.

Nonpartisan, merit-based hiring allows government to recruit and
retain a high-quality work force and prevents one administration from
packing federal jobs with political loyalists and the next one from
replacing them with its own loyalists. The Trump administration will
degrade the quality of government in both the short term and the long
term, as it will tempt the next Democrat who moves into the White
House to replace all the Trump loyalists with people who pass the
Democrats’ preferred ideological litmus test.

The memo says its goal is “recruiting patriotic Americans for
federal service.” The government can and should ensure that federal
employees, from administrative assistants to air traffic controllers,
have the skills and aptitude to do their jobs. But their views on the
administration’s policy priorities are irrelevant, as is their
patriotism — however that is defined. Allowing someone in the
government to screen applicants for patriotism is reminiscent of the
loyalty oaths of the McCarthy era, which were arbitrarily applied to
unfairly deny employment to many.

Another part of the memo says the government will target
“recruitment at state and land-grant universities, religious
colleges and universities, community colleges, high schools, trade and
technical schools, home-schooling groups, faith-based groups, American
Legion, 4-H youth programs and the military, veterans and law
enforcement communities.”

The memo purports to be about merit hiring, but there is no reason to
believe that people at these targeted institutions are likely to have
greater merit than others. The hypocrisy underlying this policy is
palpable. Conservatives long have urged that every person be
considered solely on the basis of individual merit. A home-schooled
soil scientist, or one who is in 4-H or the American Legion, is not
necessarily a better fit for a job than one who attended a public
school or who belongs to different clubs.

The preference for “religious colleges and universities” and
“faith-based groups” violates the First Amendment. If the federal
government targeted recruiting at secular universities and secular
groups, religious schools and groups would be justifiably outraged. A
preference for religious schools and groups is likewise
unconstitutional. To take a simple example, preferring to recruit at
Georgetown University over George Washington University, solely
because the former is a Jesuit institution and the latter is secular,
would be offensive and unconstitutional.

Conservatives have opposed employers requiring D.E.I. statements out
of concern that those who did not express a particular viewpoint would
not get hired. This policy is strikingly similar — except the views
expressed must be consistent with the politics of the Trump
administration.

No modern presidential administration has undertaken such an effort to
staff the entire government with political loyalists. It is plainly
inconsistent with good government, with federal law and with the
Constitution.

_[ERWIN CHEMERINSKY is the dean of the law school at the University of
California, Berkeley, where CATHERINE FISK is a professor of labor
law.]_

* civil service
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* Donald Trump
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* Trump 2.0
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* Trump Administration
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* government employees
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* Civil Service law
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* Hatch Act
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* First Amendment
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* The First Amendment
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* political appointees
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* GS-5
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* fire fighters
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* park rangers
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* air trafic controllers
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* merit-based hiring
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* political loyalists
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